@ControlsFreak comments on "Culture War Roundup for the week of March 3, 2025

Culture War Roundup for the week of March 3, 2025

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ControlsFreak 3d ago

And it’s not as though the Court wasn’t thinking about non-residents and illegal immigrants. On the subject of non-residents, the Court approvingly quotes the common-law rule that birthright citizenship applies “whether the parents were settled, or merely temporarily sojourning, in the country, was an English subject.” The dissent is even clearer about this:

The English common-law rule recognized no exception in the instance of birth during the mere temporary or accidental sojourn of the parents. As allegiance sprang from the place of birth regardless of parentage, and supervened at the moment of birth, the inquiry whether the parents were permanently or only temporarily within the realm was wholly immaterial.

Correct that they acknowledged temporary folks could count, but why? What was the Court thinking about? And yes, what were they not thinking about? The Court (not the dissent, which the linked author cites) actually helpfully asks this question in considering whether there are other exceptions. They cite The Schooner Exchange v. M’Faddon:

The reasons for not allowing to other aliens exemption “from the jurisdiction of the country in which they are found” were stated as follows:

When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign counties are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to grant such exemption.

So, uh, what is the implied license under which illegal immigrants enter? Clearly, this decision was at a time where people could just enter as a temporary or accidental sojourn. They didn't have to climb over a wall or anything. "They just let you do it," as they say, and there was nothing illicit about it. Thus, the Court in The Exchange found that their entry was governed by an implied license. What is the implied license by which a modern day illegal immigrant enters? Do they owe temporary and local allegiance? What does that look like? What do we do with a situation where the laws of the United States expressly say that they do not have any license to enter, implied or otherwise? The Court in Wong Kim Ark really, actually, was not thinking about such a case in any way; it was not possible for them to even conceive of it! It is messy; it's very messy.

Context

sockpuppet2 ControlsFreak 2d ago

I think the decision sufficiently covered the Chinese Exclusion Acts, before re-stating that jus soli citizenship is the law, to grant that the concept of legal and illegal immigration did exist at the time the case was decided and was considered by the majority (paragraphs 106-113:

The acts of congress, known as the 'Chinese Exclusion Acts,' the earliest of which was passed some 14 years after the adoption of the constitutional amendment, cannot control its meaning, or impair its effect, but must be construed and executed in subordination to its provisions. Ad the right of the United States, as exercised by and under those acts, to exclude or to expel from the country persons of the Chinese race, born in China, and continuing to be subjects of the emperor of China, though having acquired a commercial domicile in the United States, has been upheld by this court, for reasons applicable to all aliens alike, and inapplicable to citizens, of whatever race or color. Chae Chan Ping v. U. S., 130 U. S. 581, 9 Sup. Ct. 623; Nishimura Ekiu v. U. S., 142 U. S. 651, 12 Sup. Ct. 336; Fong Yue Ting v. U. S., 149 U. S. 698, 13 Sup. Ct. 1016; Lem Moon Sing v. U. S., 158 U. S. 538, 15 Sup. Ct. 967; Wong Wing v. U. S., 163 U. S. 228, 16 Sup. Ct. 977.

In Fong Yue Ting v. U. S., the right of the United States to expel such Chinese persons was placed upon the grounds that the right to exclude or to expel all aliens, or any class of aliens, absolutely or upon certain conditions, is an inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence, and its welfare; that the power to exclude or to expel aliens, being a power affecting international relations, is vested in the political departments of the government, and is to be regulated by treaty or by act of congress, and to be executed by the executive authority according to the regulations so established, except so far as the judicial department has been authorized by treaty or by statute, or is required by the paramount law of the constitution, to intervene; that the power to exclude and the power to expel aliens rests upon one foundation, are derived from one source, are supported by the same reasons, and are in truth but parts of one and the same power; and therefore that the power of congress to expel, like the power to exclude aliens, or any specified class of aliens, from the country, may be exercised entirely through executive officers; or congress may call in the aid of the judiciary to ascertain any contested facts on which an alien's right to be in the country has been made by congress to depend. 149 U. S. 711, 713, 714, 13 Sup. Ct. 1016.

In Lem Moon Sing v. U. S., the same principles were reaffirmed, and were applied to a Chinses person, born in China, who had acquired a commercial domicile in the United States, and who, having voluntarily left the country on a temporary visit to China, and with the intention of returning to and continuing his residence in this country, claimed the right under a statute or treaty to re-enter it; and the distinction between the right of an alien to the protection of the constitution and laws of the United States for his person and property while within the jurisdiction thereof, and his claim of a right to re-enter the United States after a visit to his native land, was expressed by the court as follows: 'He is none the less an alien, because of his having a commercial domicile in this country. While he lawfully remains here, he is entitled to the benefit of the guaranties of life, liberty, and property, secured by the constitution to all persons, of whatever race, within the jurisdiction of the United States. His personal rights when he is in this country, and such of his property as is here during his absence, are as fully protected by the supreme law of the land as if he were a native or naturalized citizen of the United States. But when he has voluntarily gone from the country, and is beyond its jurisdiction, being an alien, he cannot re-enter the United States in violation of the will of the government as expressed in enactments of the law-making power.' 158 U. S. 547, 548, 15 Sup. Ct. 971.

It is true that Chinese persons born in China cannot be naturalized, like other aliens, by proceedings under the naturalization laws. But this is for want of any statute or treaty authorizing or permitting such naturalization, as will appear by tracing the history of the statutes, treaties, and decisions upon that subject, always bearing in mind that statutes enacted by congress,a § well as treaties made by the president and senate, must yield to the paramount and supreme law of the constitution.

The power, granted to congress by the constitution, 'to establish an uniform rule of naturalization,' was long ago adjudged by this court to be vested exclusively in congress. Chirac v. Chirac (1817) 2 Wheat. 259. For many years after the establishment of the original constitution, and until two years after the adoption of the fourteenth amendment, congress never authorized the naturalization of any one but 'free white persons.' Acts March 26, 1790, c. 3, and Jan. 29, 1795, c. 20 (1 Stat. 103, 414); April 14, 1802, c. 28, and March 26, 1804, c. 47 (2 Stat. 153, 292); March 22, 1816, c. 32 (3 Stat. 258); May 26, 1824, c. 186, and May 24, 1828, c. 116 (4 Stat. 69, 310). By the treaty between the United States and China, made July 28, 1868, and promulgated February 5, 1870, it was provided that 'nothing herein contained shall be held to confer naturalization upon citizens of the United States in China, nor upon the subjects of China in the United States.' 16 Stat. 740. By the act of July 14, 1870, c. 254, § 7, for the first time, the naturalization laws were 'extended to aliens of African nativity and to persons of African descent.' Id . 256. This extension, as embodied in the Revised Statutes, took the form of providing that those laws should 'apply to aliens [being free white persons, and to aliens] of African nativity and to persons of African descent'; and it was amended by the act of Feb. 18, 1875, c. 80, by inserting the words above printed in brackets. Rev. St. (2d Ed.) § 2169 (18 Stat. 318). Those statutes were held, by the circuit court of the United States in California, not to embrace Chinses aliens. In re Ah Yup (1878) 5 Sawy. 155, Fed. Cas. No. 104. And by the act of May 6, 1882, c. 126, § 14, it was expressly enacted that, 'hereafter no state court or court of the United States shall admit Chinese to citizenship.' 22 Stat. 61.

In Fong Yue Ting v. U. S. (1893), above cited, this court said: 'Chinese persons not born in this country have never been recognized as citizens of the United States, nor authorized to become such under the naturalization laws.' 149 U. S. 716, 13 Sup. Ct. 1023.

The convention between the United States and China of 1894 provided that 'Chinese laborers or Chinese of any other class, either permanently or temporarily residing in the United States, shall have for the protection of their persons and property all rights that are given by the laws of the United States to citizens of the most favored nation, excepting the right to become naturalized citizens.' 28 Stat. 1211. And it has since been decided, by the same judge who held this appellee to be a citizen of the United States by virtue of his birth therein, that a native of China of the Mongolian race could not be admitted to citizenship under the naturalization laws. In re Gee Hop (1895) 71 Fed. 274.

The fourteenth amendment of the constitution, in the declaration that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,' contemplates two sources of citizenship, and two only,—birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by n abling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.

ControlsFreak sockpuppet2 2d ago

'He is none the less an alien, because of his having a commercial domicile in this country. While he lawfully remains here, he is entitled to the benefit of the guaranties of life, liberty, and property, secured by the constitution to all persons, of whatever race, within the jurisdiction of the United States. His personal rights when he is in this country, and such of his property as is here during his absence, are as fully protected by the supreme law of the land as if he were a native or naturalized citizen of the United States. But when he has voluntarily gone from the country, and is beyond its jurisdiction, being an alien, he cannot re-enter the United States in violation of the will of the government as expressed in enactments of the law-making power.'

This part is pretty operative, citing Lem Moon Sing. "While he lawfully remains here." What happens if he just blatantly "re-enters the United States in violation of the will of the government as expressed in enactments of the law-making power"? The Wong Kim Ark Court simply does not address this case at all. In such a case, is he "entitled to the benefit of the guaranties of life, liberty, and property, secured by the constitution to all persons"? The Court seems to imply some sort of "no". Again, they seem to lack an "implicit license". It is messy and not clear whether they owe or are ascribed to owe a 'temporary and local allegiance'. It is, of course, abundantly unclear how this affects any child that follows such clear lawbreaking. The Court here very directly reasoned IF A THEN B, where A is "is lawfully present". "Congress, you can keep them out, but IF you let them come in lawfully, THEN..." There is just nothing that is, "Congress, you very clearly stated that you are keeping them out, but nonetheless, they completely violated the entire premise of the argument, such that we're in NotA, and therefore..." It's just nowhere to be found. It's just an unspoken assumption that if Congress says they stay out, then they stay out, and there's not even a question to be answered. They really, actually, did not consider a legit illegal alien who plainly violates the law of entry and is not lawfully present.

sockpuppet2 ControlsFreak 1d ago

In another post, Unikowsky wrote something to the effect that there are two laws of appellate litigation: 1) That every case falls under a controlling precedent and 2) That every case can be distinguished from all precedents. To be clear, have you read Lem Moon Sing, or just the reference to it in Wong Kim Ark?

It is correct that WKA was born to legally-residing parents and - unless I'm missing something - that the eponymous decision doesn't explicitly state that he would still be a citizen, if his parents had not been legal residents. However, given that decisions generally don't go out of their way to address controversies not being litigated, I place more weight on the fact that the decision also didn't include illegal immigrants in its list of people outside the "jurisdiction" of the USA, for the purposes of jus soli birthright citizenship. So, I guess the question is if that list is the list; see Unikowsky's explanation of why this would be a bad case for "reasoning backwards."

But the point I was trying to make was that the broader claim (without accusing you of using this Bailey!) that 19th century law is irrelevant to illegal immigration, because "illegal immigration didn't exist at the time" is ahistorical: The Wong Kim Ark case occurred because of statutory restrictions on immigration, SCOTUS had already upheld those statutory restrictions on immigration, and the Wong Kim Ark decision discussed those previous cases. The 14th Amendment may have preceded the Chinese Exclusion Acts, but only by a short period and Wong Kim Ark, with all its preceding caselaw on immigration, was decided just 30 years after the 14th amendment was ratified.

ControlsFreak sockpuppet2 1d ago

if that list is the list

I would add a different emphasis. If this list is the list. That's the entire question. There is no need to reason backwards. You can very easily reason forward and just observe that they very clearly had a holding concerning a legal resident, spoke about a variety of considerations that come into play (some of which cut one way, some of which cut the other way), and then made a list of the situations that they considered were clear exceptions. They even talked about the reasons why they weren't adding other exceptions... and some of those reasons cut one way, and some of them cut the other way.

19th century law is irrelevant to illegal immigration, because "illegal immigration didn't exist at the time" is ahistorical

Is there any historical evidence that the Justices in Wong Kim Ark had engaged with any case of an illegal immigrant who just flagrantly violated the law by going to the US and then just staying... that was not just, "Yeah, dude's obviously getting deported"?

sockpuppet2 ControlsFreak 1d ago · Edited 1d ago

They even talked about the reasons why they weren't adding other exceptions... and some of those reasons cut one way, and some of them cut the other way.

Which paragraphs are these? (Text with paragraph numbers)

Unimportant people "flagrantly violating the law" generally don't get their cases appealed very high (if there's no legal ambiguity, there's no reason to hear the appeal...) and I don't know if any of the immigrants in these cases flagrantly violated the law, but the three petitions combined in Fong Yue Ting (cited in WKA), along with those in its precedents seem like reasonably close 19th century parallels for modern immigration law/enforcement. Close enough, at least, that I think it's unreasonable to say SCOTUS hadn't contemplated illegal immigration multiple times, prior to deciding WKA.

ControlsFreak sockpuppet2 1d ago · Edited 1d ago

Which paragraphs are these?

The first examples are the ones I already cited, with blockquotes.

Fong Yue Ting

I would definitely bin these under the category of being just, "Yeah, dude's obviously getting deported." But let's take a look at a few pieces of the opinion of the Court. The syllabus begins with a banger:

The right to exclude or to expel aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, is an inherent and inalienable right of every sovereign nation.

The opinion basically begins by citing Nishimura Ekiu v. United States:

"It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe...

Then, citing Chae Chan Ping v. United States:

"Those laborers are not citizens of the United States; they are aliens. That the Government of the United States, through the action of the Legislative Department, can exclude aliens from its territory, is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens, it would be, to that extent, subject to the control of another power... [emphasis added]

That is, there is actually something lost in terms of jurisdiction if they are not able to exclude aliens. That would be very strange if such individuals are "subject to the jurisdiction thereof". What about the whole hullabaloo about whether you can call it an "invasion"? The Court cites Knox v. Lee to basically say that this question doesn't matter:

If, therefore, the Government of the United States, through its Legislative Department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects. The existence of war would render the necessity of the proceeding only more obvious and pressing. The same necessity, in a less pressing degree, may arise when war does not exist, and the same authority which adjudges the necessity in one case must also determine it in the other.

They cite various "commentators on the law of the nations":

"The Government of each State has always the right to compel foreigners who are found within its territory to go away, by having them taken to the frontier. This right is based on the fact that, the foreigner not making part of the nation, his individual reception into the territory is matter of pure permission, of simple tolerance, and creates no obligation... [emphasis added]

Shades of "implicit license". Again, the Congress has given no permission, no license, for them to be here at all. Actually, a bit more on licences:

Whatever license, therefore, Chinese laborers may have obtained previous to the act of October 1, 1888, to return to the United States after their departure is held at the will of the Government, revocable at any time at its pleasure...

and

In view of that decision, which, as before observed, was a unanimous judgment of the Court, and which had the concurrence of all the Justices who had delivered opinions in the cases arising under the acts of 1882 and 1884, it appears to be impossible to hold that a Chinese laborer acquired, under any of the treaties or acts of Congress, any right, as a denizen, or otherwise, to be and remain in this country except by the license, permission, and sufferance of Congress, to be withdrawn whenever, in its opinion, the public welfare might require it.

It really seems that illegal aliens simply lack any licence, implied or otherwise. Of course, if they are permitted, then they are subject to the laws:

By the law of nations, doubtless, aliens residing in a country with the intention of making it a permanent place of abode acquire, in one sense, a domicile there, and, while they are permitted by the nation to retain such a residence and domicile, are subject to its laws and may invoke its protection against other nations.

Chinese laborers, therefore, like all other aliens residing in the United States for a shorter or longer time, are entitled, so long as they are permitted by the Government of the United States to remain in the country, to the safeguards of the Constitution, and to the protection of the laws, in regard to their rights of person and of property, and to their civil and criminal responsibility. [emphasis added]

Again, what if they are not permitted or licenced? Are they then entitled to the safeguards of the Constitution and so forth? The implication sure seems to be no.

So yeah, my read of that opinion is that it's basically just, "Yeah, dude's obviously getting deported." And moreover, it reaffirms that aliens need some sort of permission or license to be here (implicit or otherwise), without which, it's not even clear that we can even say that they are entitled to any of the safeguards of the Constitution (much as you and I might want it to be otherwise), much less that they are considered subject to the laws or jurisdiction even if they were so entitled.

Why would the Wong Kim Ark Court even consider the question of whether blatantly illegal aliens were some special class of exemptions in a Constitutional protection when they had already linked to prior precedent that essentially said that they were categorically ineligible to appeal to any sort of Constitutional protection whatsoever?

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